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Between

privies.

therefore, does not in any manner infringe, but rather confirms, the general rule, that the merits of a question, which has been directly determined by a court of competent jurisdiction, cannot be tried over again, between the same parties, in any shape whatsoever.

The authority of a former adjudication of the right prevails between the same parties, that is, between the same persons suing or sued in the same quality or character. A woman is not estopped, after coverture, by an admission upon record by her husband and herself, during coverture (1). So an heir, who claims as heir of his father, shall not be estopped by an estoppel upon him as heir to his mother (2). So á party suing as executor, in an action of debt upon a bond, will not be estopped by having been barred in an action upon the same bond, when he sued as administrator; but he may shew that the letters of administration have been since repealed. (3)

Estoppels by verdict, admissions on record, &c. bind privies in blood, (as the heir,) privies in estate, (as feoffee, lessee, &c.) and privies in law, (as lord by escheat, tenant by curtesy, tenant in dower, the incumbent of a benefice, and others who come in by act of law in the post); in the same manner, persons standing in either of these relations will be bound equally with the parties themselves, by a judgment in a former action, for the same matter, if pleaded in bar. (4)

A verdict or judgment, in a former action, upon the same matter directly in question, is also evidence for or against privies in blood, privies in estate, and privies in law, as well as for or against the parties to the suit. Thus, if an ancestor has obtained a verdict, the heir may give it in

(1) Com. Dig. tit. Estoppel, (C).
(2) Ib.

(3) Robinson's casc, 5 Rep. 32. b.

(4) Co. Lit. 352. a. Com. Dig. tit. Estoppel, (B). Outram v. Morewood, 3 East, 346.

evidence, as privy to it (1). So, if several estates in re mainder be limited in a deed, and one of the parties in remainder obtain a verdict in an action brought against him for the same land, that verdict may be given in evidence, for another person in remainder, in an action brought against him for the same land, although he does not claim any estate under the first remainder-man; because they all claim under the same deed (2). So, a verdict for or against a lessee is evidence for or against the reversioner (3). And a decree in the Court of Exchequer, in a cause between the vicar on one side and the impropriator on the other, (establishing the vicar's title to small tithes under an ancient endowment against the defendant, who' insisted that he was only entitled to an annual payment in lieu of tithes,) is evidence in suits between succeeding vicars and patrons; but not conclusive evidence, as it would be, if the ordinary had been a party to the first suit (4). So, a judgment for or against the school-master of a hospital, concerning the rights of his office, has been admitted to be evidence for or against his successor (5). And so, where, on an information in the nature of a quo warranto against the defendant for acting as bailiff of a corporation, the defendant pleaded that he had been duly elected under a nomination by two persons, who were bailiffs of the corporation, and the point in issue was, whether they were bailiffs at the time of the election, the record of a judgment of ouster in a quo warranto against them, was adjudged to be good evidence against the defendant, who claimed under them (6) *. These cases fully establish the rule above laid down,

(1) Per Cur. in Lock v. Norbonne, 3 Mod. Rep. 142.

(2) Pyke v. Crouch, 1 Ld. Ray. 730. Com. Dig. tit. Evidence, (A. 5.). Bull. N. P. 232.

(3) Per Cur. in Rushworth v. Countess of Pembroke and Currier, Hardr. 472. Com. Dig. ib.

Gilb. Ev. 35, 6.

Bull. N. P. 232.

(4) Carr v. Heaton, 3 Gwillim, 1261. See Bishop of Lincoln v. Ellis and another, 2 Gwill. 632.

(5) Lord Brounker v. Sir R. Atkins, Skin. 15.

(6) R. v. Hebden, Andr. 388; 2 Str. 1109, S. C.; Bull. N. P. 231, S. C.; 2 Selw. N. P. 1047, cited from MS, R. v. Grimes, 5 Burr. 2601. S. P.

Judgment of ouster has been considered in the nature of a judgment in rem. In the case of the King v. the Mayor of York, 5 T. R. 72, where the cases of R.

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Not evidence against a stranger.

down, that a verdict or judgment, directly upon the point, is good evidence, not only for or against the parties to the suit, but also for or against any persons standing in the relation before mentioned, of privies in blood, privies in estate, or privies in law.

The general rule is, that a verdict cannot be evidence for either party, in an action against one who was a stranger to the former proceeding, who had no opportunity to examine witnesses, or to defend himself, or to appeal against the judgment. Thus a verdict in an action between A and B is not evidence against a third person C, who was neither party nor privy to the first suit. The case of Green v. The New River Company (1), where Lord Kenyon said, that a verdict, obtained in an action against a person for the negligence of his servant, is evidence in a subsequent action by the master against the servant, as to the quantum of damages, is not an exception to the general rule. Such a verdict would not be evidence of the fact of the injury, but admissible only as evidence of special damages, to shew the amount of what the master was by process of law compelled to pay in the action brought against himself.

It is not easy to reconcile with this general rule the case of Kinnersley v. Orpe (2), where a verdict for the plaintiff in an action for a trespass, committed in the plaintiff's fishery, against one who justified as servant, was allowed to be evidence against another defendant, in a subsequent action for a penalty incurred by destroying fish in the same fishery. At the trial of the cause this was admitted, after

(1) 4 T. R. 590. And see 2 East, 459.

(2) 2 Doug. 517. The Court of K. B. thought the evidence admissible, but not conclusive.

v. Hebden and R. v. Grimes were cited in argument, in order to shew that such a judgment cannot be conclusive against third persons, Lord Kenyon is reported to have said, "If you derive title to a corporate office through A, and the prosecutor shew a judgment of ouster against A, it is conclusive against you, unless you can impeach the judgment as obtained by fraud."

argu

argument to be conclusive evidence of the plaintiff's right of fishery; as it appeared, that the defendant in the second suit acted by the command of the same person, under whom the defendant in the first action had justified, and who was considered by the judge to be the true party in both causes. "It is extraordinary," said Lord Ellenborough (1), commenting on this case, "that it should ever have been for a moment supposed, that there could be an estoppel in such a case. It was not pleaded as such; neither were the parties in the second suit the same as those in the first. The doubt seems rather to be, whether the former record in the action of trespass was at all admissible in evidence upon the subsequent action, against the defendant, who was not a party to the former action, rather than as to any conclusive effect which it could have had."

Another case, which does not come strictly within the general rule, is where a record of conviction for felony is admissible in evidence against an accessary, to shew that the felony has been committed. "The only questions,"

says Mr. Justice Foster (2)," in which the accessary can have any concern in common with the principal, are, first, whether the felony was committed, and, secondly, whether it was committed by the principal. These facts the conviction of the principal hath established with certainty, at least sufficient to put the accessary to his answer. The rule is founded on a legal presumption, that every thing in the former proceeding was rightly and properly transacted. Another weighty reason is, that the witnesses against the principal may be dead, or not to be found, when the accessary is brought upon his trial, especially after a long interval between the trials." Mr. Justice Foster admits, that the record of conviction is not conclusive evidence against the accessary, because it is as to him, res inter alios

(1) In Outram v. Morewood, 3 East, 366.

(2) Fost. Disc. iii. c. 2. s. 2. p. 364, 5,7. And see R. v. Baldwin, 3 Campb.

265; R. v. Smith, 1 Leach. Cr. C. 288, 4th Ed.

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acta.

Nox, for a stranger.

acta.

"If, therefore, it shall come out in evidence upon the trial of the accessary, as it sometimes hath, and frequently may, that the offence, of which the principal was convicted, did not amount to felony in him, or not to that species of felony, with which he was charged, the accessary may avail himself of this, and ought to be acquitted. And if it shall manifestly appear in the course of the accessary's trial, that in point of fact the principal was innocent, common justice requires that the accessary should be acquitted." Mr. Justice Foster then puts the following case, "A is convicted upon circumstantial evidence, strong as that sort of evidence can be, of the murder of B; C is afterwards indicted as accessary to this murder; and it comes out, upon the trial, by incontestable evidence, that B is still living, (Lord Hale somewhere mentions a case of this kind,) is C to be convicted or acquitted? The case is too plain to admit of a doubt. Or suppose B to have been in fact murdered, and that it should come out in evidence, to the satisfaction of the Court and Jury, that the witnesses against A were mistaken in his person, (a case of this kind I have known,) that A was not nor could possibly have been present at the murder. It must be admitted," continues Mr. Justice Foster," that mere alibi evidence lies under a great and general prejudice, and ought to be heard with uncommon caution: but if it appears to be founded in truth, it is the best negative evidence that can be offered; it is really positive evidence, which in the nature of things necessarily implies a negative; and in many cases it is the only evidence, which an innocent man can offer. What in the case above put, are a court and jury to do? If they are satisfied upon this evidence that A was innocent, natural justice and common sense will suggest, what is to be done in the case of C."

Farther, it is laid down as a general rule, that a verdict is evidence only between the same parties, or between such as claim under the same parties; and, that a stranger cannot give a verdict in evidence against one, who was party

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